When May Someone Bring a Defendant Who Refuses to Go to Bais Din to Secular Court?

Rav Shmuel Hongiwachs

Question: 

When is it permitted for a plaintiff to take a defendant who refuses to go to bais din to a secular court? 

What about using a secular court to get a restraining order? 

Answer:

The standard procedure is for a plaintiff to have a bais din send a hazmanah (summons) to a defendant to invite him to a din Torah. If he does not respond to three hazmanos, bais din will give the plaintiff a heter to pursue the claim in secular court. 

Rav Paltai Gaon learns this practice from a Gemara in Bava Kama. The Gemara finds a Torah source for a then-common expression: “If you call your friend and he doesn’t answer, take a heavy wall and throw it at him.” Rav Paltai explains this Gemara to be referring to the bais din process – if you call your friend to a din Torah and he doesn’t come, you can strike him with the “heavy wall” of the secular courts.  

There is a question in the Rishonim whether one needs explicit permission from bais din to go to a secular court, or if the fact that the defendant ignored the hazmanos is sufficient. The Teshuvas Rema says bais din must give the plaintiff explicit approval to take his friend to secular court. There is, however, a minority opinion, that one doesn’t need an explicit heter from bais din to go to court; rather, if one sends the summonses of bais din and his friend ignores them, he is permitted to take him to court without any official permission from bais din. 

With regards to a temporary restraining order, if one has enough time, it is preferable to get permission from bais din to use a secular court for this purpose. If, however, one is pressed for time and is afraid that the other party will take irrevocable actions, he would be allowed to obtain a temporary restraining order without first obtaining permission from bais din.